The government can provisionally grant NS a private railway permit

The Dutch state can provisionally grant NS a license to use most of the rail network without market research. Which has the court in The Hague. According to the court, it has not been established that the government is acting in violation of European laws and regulations by issuing private permits.

Several regional carriers, united in the Federation of Mobility Companies of the Netherlands (FMN), had one summary judgment led to the so-called ‘mainline railway concession’. This means the exclusive right to race on most of the Dutch track.

Until 2025, this exclusive right is in the hands of the NS, of which the State is a 100% shareholder. The government then wants to extend the concession privately until the end of 2033, but the regional transport companies do not agree. Because they want to compete for themselves, they have taken the government to court.

According to the transport companies, the exclusivity of the NS is contrary to European legislation. But the court in The Hague rejected their request. The court emphasizes that the European Court of Justice must ultimately decide on how EU law should be interpreted.

There is still uncertainty about this in Europe itself, according to the court. “There is as yet no case law of the Court addressing the question of what is required of a Member State in a specific case such as this. Opinions on this matter differ widely, not only between parties, but also between (European) authorities. “

Arriva, Transdev (Connexxion), Keolis, Qbuzz and EBS have merged into the Federation of Mobility Companies in the Netherlands (FMN). All of these companies are wholly or partly owned by foreign state-owned companies, such as Deutsche Bahn (Arriva) and France’s SNCF (Keolis). Arriva currently already operates several railway lines in the north of the country and in Limburg, among others. Keolis operates lines in the east of the Netherlands. Connexxion (Valleilijn) and Qbuzz (Merwede Lingelijn) are also active on the Dutch rail network.

Earlier, European Commissioner Adina Vălean called a new private award to NS a “serious risk of breaching European law”. According to her, the cabinet should also check with other carriers whether they want to use the Dutch railways.

FMN believes that the tender for the core rail network – around 95% of the Dutch rail network – should be open. According to regional carriers, European rules state that talks must first be held with market parties and that a private premium can only be taken as a last step. Commercial providers such as Arriva, which already operate a number of regional lines, are affected parts of the main railway networkespecially at its edges.

However, the court in The Hague ruled that it is currently not possible to enforce the opening of the mainline rail network through administrative proceedings.

The grouping of transport companies has also launched the so-called merit procedure relating to the private award. If in such a procedure it is determined that the European rules have not been followed, a private award could still be out of the question. The proceeding on the merits is scheduled for the end of March.

It the vast majority of the House of Representatives hears nothing to allow for more competition on the railways. Most sides fear that increased market forces will lead to fragmentation and poorer service for travellers. This is also what the NS points out. The railway company is satisfied with the verdict in summary proceedings, a spokesman said. “Now we can continue to shape the new concession.”

The FMN is disappointed with the verdict. “But more important to us, however, is for the court to state again that the State has not made plausible the lack of interest in running on the basis of open access on the mainline rail network. It is therefore certainly not inconceivable that the Lo State acts in violation of Community law”.

But that judgment ultimately rests with another (European) judge.